PENNSYLVANIA RECORD

A motion by the Kellogg Company to dismiss a federal discrimination complaint it is

facing by a former warehouse worker has been denied by a federal judge.

U.S. District Judge Anita Brody issued a memorandum Sept. 10 at the Eastern District of Pennsylvania that allows Brandon Harrell’s claims of racial discrimination, retaliation and hostile work environment to proceed against his former employer.

Harrell, who is black, began working for Kellogg as a warehouseman at the company’s Philadelphia distribution center back in the spring of 2006, background information on the case shows.

He ended up working there for five years.

In mid February 2010, while still under the defendant’s employ, Harrell injured his knee while lifting products at work, the memorandum states.

Harrell claimed that because of his race, the company did not honor work-related restrictions that were urged by his physician.

Instead, Harrell was given the same work duties as those he undertook prior to his injury, duties that involved heavy lifting.

Harrell ended up filing a complaint of racial discrimination with the U.S. Equal Employment Opportunity Commission in May 2010; the following month he was terminated.

Harrell soon filed suit.

The defendants subsequently filed a motion seeking to have the claims dismissed on the basis that Harrell’s claims are directly governed by the collective bargaining agreement, which requires him to arbitrate all grievances; his claims require interpretation of the CBA, and therefore must go to arbitration; and that Harrell waived all claims against Kellogg when he settled his prior workers’ compensation claim, according to the judge’s memorandum.

On the arbitration matter, Harrell counter-argued that his claims were properly brought in federal court because the collective bargaining agreement does not govern his Section 1981 discrimination claims.

Judge Brody agreed, writing that the CBA did not “clearly and unmistakably waive Harrell’s right to litigate his [Section 1981] claims in federal court.”

Brody also denied Kellogg’s motion to dismiss on the basis that Harrell’s Section 1981 claims require interpretation of the CBA, and therefore require arbitration, writing that it’s too early in the litigation to make that determination.

The judge stated that because discovery “might yield another conclusion,” it would be proper for Kellogg to raise this issue at a later stage of the litigation.

Finally, on the defense argument that Harrell waived his claims against Kellogg because he signed the workers’ compensation settlement agreement, Brody again refused to dismiss the claim, although she wrote that like the prior issue, Kellogg can raise the argument at a later stage of the case.